IN THE CASE OF: BOARD DATE: 3 December 2021 DOCKET NUMBER: AR20210007398 APPLICANT REQUESTS: in effect, correction of his service record to reflect retroactive promotion to staff sergeant (SSG)/E-6 effective 24 November 2014. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Promotion Point Worksheet (PPW) Developmental/Self-Assessment Tool Promotion to Staff Sergeant (SSG/E6) * DA Form 638 (Recommendation for Award) dated 4 April 2012 * DA Form 3349 (Physical Profile) dated 2 April 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending date 24 November 2014 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect, that he attended the promotion selection board and was recommended for promotion to SSG prior to his medical retirement. Some of his previous assigned duties were billets to be held by a SSG. In accordance with Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations), paragraph 3-3 (Physical Disability Cases), enlisted Soldiers processed for disability retirement that are not currently serving in the highest grade served will be referred to the AGDRB for grade determination unless the Soldier is entitled to a higher grade. He requests that he be promoted to SSG and his service record corrected to reflect his pay grade as E-6 with effective 24 November 2014 with retroactive benefits due to the costly injustice which as caused an unnecessary financial hardship. 3. A review of the applicant’s service record shows: a. The applicant enlisted in the Regular Army (RA) on 2 November 2005. He held the military occupational specialty 12B (Combat Engineer). b. The applicant served in Iraq from 23 September 2006 to 4 December 2007, 28 October 2008 to 30 May 2009, and 11 September 2010 to 5 September 2011 c. The applicant’s Enlisted Record Brief (ERB) shows that he was promoted to SGT/E-5 with the date of rank of 1 May 2009. d. The ERB also shows that he was promotable and had acquired 14 points as of November 2013, but does not have a promotion selection date. e. The applicant entered the Integrated Disability Evaluation System (IDES) and was recommended for temporary disability retirement at 50% with a reexamination in February 2016. f. On 28 August 2014, U.S. Army Garrison - Hawaii published Orders Number 240- 0006, ordering his separation on 24 November 2014 due to physical disability and placement on the Temporary Disability Retired List the next day. The retirement orders listed his retired grade of SGT, the statue that authorized his retirement was Title 10, U.S. Code, (10 USC), section 1202 with other eligible law of Title 10 USC, section 1372. g. The applicant was honorably retired on 24 November 2014. His DD Form 214 shows he retired in accordance with chapter 4 of AR 635-40. He completed 9 years and 23 days of active service. His DD Form 214 further lists in: • Block 4a (Grade, Rate, Rank): SGT • Block 4b (Pay Grade): E-5 • Block 12i (Effective Date of Pay Grade): 1 May 2009 • Block 11 (Primary Specialty): 12B2O Combat Engineer • Block 18 (Remarks), retired list grade to be SGT 4. The applicant provides: a. Promotion Point Worksheet (PPW) Development/Self-Assessment Tool Promotion to Staff Sergeant (SSG/E6) dated 7 February 2012 that shows he was recommended for E6 in the primary military occupational specialty (MOS) 12B (Combat Engineer) with a total promotion points of 417. b. DA Form 638, dated 4 April 2012, that shows the applicant was awarded the Army Achievement Medal with one oak leaf cluster for his meritorious service from 10 July 2008 through 30 May 2012. He served as a Team Leader and at times the Squad Leader during his assignment. c. DA Form 3349 dated 2 April 2014 that issued the applicant a permanent physical profile for Bipolar disorder that limited his ability to live in an austere environment without worsening his medical condition and required a dedicated 8-hours of sleep per night to prevent further psychological deterioration. This condition required a Medical Evaluation Board (MEB). Block 16b (Patient’s Identification / Grade/Rank) shows the applicant to be a SGT (Promotable (P)). 5. In the processing of this case, on 30 April 2021, the Enlisted Promotions Branch at the U.S. Army Human Resources Command (HRC) provided an advisory opinion. The advisory official stated, after review of his application for correction of military records, it has been determined that his request for correction of military records has been approved for promotion to SSG with an effective date and date of rank of 24 November 2014. a. Due to his separation from the Army, he is no longer in the Electronic Military Personnel Office system and a promotion transaction cannot be submitted. b. The Army Review Board Agency may use this response to correct his DD Form 214 sections 4a and 4b to reflect SSG and E-6, 11 to reflect 12B3O and 12i to reflect the correct date of pay grade as 24 November 2014. He is not entitled to back pay. 6. On 5 May 2021, a copy of the advisory was provided to the applicant for his opportunity to submit comments. The applicant responded on 5 May 2021, via e-mail stating that he agreed with the advisory opinion. 7. By law (10 USC 1372), any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title is entitled to the grade equivalent to the highest of the following: (1) grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired; (2) highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; (3) permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. (4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. The Board concurred with elements of the advisory opinion. Based upon a preponderance of the evidence, the Board determined there is sufficient evidence that shows the applicant was promotable to the rank of SSG upon being retired to a disability, and his separation documents should be corrected to reflect his rank as SSG. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders 240- 0006, issued by United States Army Garrison-Hawaii on 28 August 2014 to show his retired grade and rank as SSG with a date of rank of 24 November 2014, and his previous rank as SGT with a date of rank of 1 May 2009; and amending his DD Form 214 for the period ending 24 November 2014 by showing: * block 4a – SSG * block 4b – E06 * block 12i – 2014 11 24; and * block 18 – Retired List Grade SSG I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3-years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10 U.S. Code, section 1372 (Grade on retirement for physical disability: members of armed forces), unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. (1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired. b. (2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired. c. (3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. d. (4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 3. Army Regulation (AR) 635-8 (Personnel Separations – Separation Processing and Documents), in effect at the time, prescribes the transition processing function of the military personnel system. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of REFRAD, retirement, or discharge. For Block 4: Grade, Rate, or Rank, verify that active duty grade or rank and pay grade are accurate at time of separation. 4. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 1-20e, per the provisions of 10 USC 1372, Soldiers on a promotion list who are retired for physical disability (10 USC 1201 or 1204) or who are placed on the temporary disability retired list (TDRL) (10 USC 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be eligible for promotion in accordance with paragraph 1–10 (the NCOES requirements in paragraph 1–28 are waived). 5. AR 15-80 (Army Grade Determination Review Board and Grade Determination), establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA). Paragraph 3–3 (Physical disability cases), an enlisted soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the soldier is entitled to a higher or equal grade by operation of law (sections 1212 and 1372, title 10, United States Code (10 USC 1212 and 1372)). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007398 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1